Question NW4171 to the Minister of Justice and Correctional Services

Reply:

1. The Offices of the State Attorney (OSA) are required by law to follow the provisions of supply chain management policies in procurement of legal services. However, the nature of the operations in the OSA environment are so complex that at times it is impossible to do so. The reliance on private legal practitioners occurs within a framework of rules pertaining to private legal practice. It is neither regularised in so far as prescripts governing State procurement is concerned, nor is it transparent.

State Attorneys are guided by section 8 of the State Attorney Act in procuring legal services. Section 8 of the State Attorney Act gives State Attorneys powers to instruct and employ, as correspondent, any Attorney or other qualified person to act in any legal proceedings or matters in any place, governed by the rules of Attorneys in private practice.

Due to various challenges raised regarding the procurement of legal services and non-compliance with section 217 of the Constitution, National Treasury issued a letter allowing State Attorneys to deviate from the normal procurement processes pending the finalisation of the Framework Contract. The Office of the Solicitor-General (OSG) then issued a directive to State Attorneys on the competitive bidding process and the implementation of the three-quotation system. The approval to deviate from normal procurement process issued by the National Treasury expired on 31 March 2021. Owing to the fact that the Framework Contract has not been finalised, the OSG then amended the delegation of powers and authority to approve the issuing of briefs from the individual Heads of offices to the Briefing Committees established within Offices of State Attorney. Consequently, all briefs to be issued are approved by the said Committees.

To standardise the procurement of state legal services, the OSG developed the Standard Operating Procedure and a Bid Evaluation criteria. The OSG also approached National Treasury to request for an extension on the deviation referred to on the paragraph above. The said request for deviation was rejected by National Treasury. Furthermore, and by way of playing oversight role, the OSG established the National Briefing Committee in order to monitor and assess the briefing patterns issued by State Attorney Offices across the country. The Committee will also provide guidelines on the criteria and processes to be followed on briefing patterns and protocols.

The Department, through the OSG and in consultation with National Treasury, has developed a Framework Contract to solicit information from Legal Service Provider(s) to enable the State to establish a pre-approved list of qualifying Legal Service Providers (Attorneys and Advocates). I have approved the Framework Contract. The bid specification in respect of the Framework Contract has been finalised. Specifications were presented to the Quality Assurance Committee at the National Treasury for approval in September 2022, and specifications were not approved, but returned for corrections and amendments.

1. Yes, the Department intends to implement a procurement framework for State legal services. The relevant details for procurement framework for State legal services are the key objectives which amongst others are:
2. Standardization of legal services offering in an effort to reduce the legal service fees paid for state litigations;
3. Capacitation of taxations skills to validate invoices to reduce exorbitant legal fees;
4. Transformation of legal services for state litigation;
5. Implementation of the briefing policy that contributes towards eliminating current race and gender disparities in the legal profession. The briefing policy caters for previously disadvantaged;
6. Implementation of a random rotational system based on the case specific requirements that will ensure fair and equitable distribution of state litigation cases by balancing the number of briefs and value of briefs;

1. Increase exposure, transfer of knowledge and skills developments for previously disadvantaged in all areas of the law;
2. Introduce performance measurement tools, success evaluation, ratings and peer review mechanisms to eliminate a perception that previously disadvantaged do not have capacity and capability to handle complex, high profile and high value cases; and
3. Encourage a change in attitude so as to promote the inclusion of previously disadvantaged and willingness to transfer skills from the few law firms/Advocates who have benefited from state legal matters to the majority of blacks and women legal practitioners.

1. Whether the rates that are paid for legal services by the Government are economical, will depend on determination of the question whether the legal practitioners in particular cases have charged reasonable fees or have overcharged. Please note that there are three (3) types of legal practitioners in South Africa. These legal practitioners are Attorneys, Trust Account Advocates and Referral Advocates.

Attorneys’ legal fees and costs rates are regulated by the Rules Board for Courts of Law which is a statutory body established to review the rules of court and to make, amend or repeal rules relating to among others, attorney’s legal fees and costs. These fees and costs, including the fees payable in respect of the service or execution of process (except subpoenas or warrants issued at the request of the State in criminal matters) or in respect of the summoning of persons to answer interrogatories are reasonable. Therefore, the legal fees rates that are paid to attorneys for state legal services relating to outsourced matters are economical.

Trust Account Advocates’ legal fees are also economical on the basis of the following two grounds: (a) firstly, the legal fees and costs are regulated and guided by the Legal Practice Council’s Code of Conduct published in terms of Section 97(1)(b) of the Legal Practice Act, which is published on Legal Practice Council Notice 813 of 2018, and (b) secondly, some of the legal fees for Trust Account Advocates, especially for work that was traditionally reserved for attorneys, are to be regulated by the Rules Board for Courts of Law.

Referral Advocates’ legal fees are similarly economical on the basis that fees that advocates are charging are in terms of guidelines and regulation of the Legal Practice Council’s Code of Conduct published in terms of Section 97(1)(b) of the Legal Practice Act, which is published on Legal Practice Council Notice 813 of 2018.

Case law and principles guides that Legal Practitioners are required to charge reasonable fees for the legal services rendered. The government is also bound by the tariffs of the Rules Board for Courts of Law and also by the guidelines of the Legal Practice Council’s Code of Conduct.